It's A Rare Day That A Judge Turns Down A Plea Agreement

NEWPORT NEWS — When a prosecutor and defense attorney recently asked a local judge to approve a plea deal that kept a pedophile out of prison, a state judge didn't take long to agree.

Newport News Circuit Court Judge Timothy S. Fisher signed off on the arrangement and former police Officer Randolph D. Smith - who pleaded guilty to six counts of indecent liberties with two teenage boys in the 1980s and '90s - but had his entire 45-year prison sentence suspended.

Some - including many on a Daily Press online message board - expressed shock at the lack of prison time for a guilty verdict in the sex abuse case. But local legal experts said it's extremely rare for a judge to turn down plea agreements that lawyers have previously negotiated.

Judges, voted into their jobs by the General Assembly, aren't bound to accept such deals - which typically involve a defendant admitting guilt in return for an agreed-to punishment. Judges can - and occasionally do - throw out the agreements, including in cases in which they don't think the punishment adequately fits the crime.

More often than not, however, judges give attorneys - who have firsthand knowledge of a case's strengths and weaknesses - great leeway in hammering out such solutions.

"Experienced lawyers know their case and their respective positions, and the judge relies on them," said Timothy Clancy, a Hampton defense attorney not involved in the Smith case. "It's natural to defer to their suggestion as to the best way to resolve a case."

In agreeing to accept the plea deal on the Smith case, Fisher's only explanation in court was an expression of confidence in the lawyers involved. The judge said he's always known the Newport News Commonwealth's Attorney's Office to be professional, and had no reason to question its judgment. "I've never known them to be reluctant to prosecute," Fisher explained.

Fisher also said he's worked with Robert W. Lawrence, Smith's defense attorney, for a long time. "I've never known him to be shy about defending a case," the judge said.

A judge's rejection of a plea deal is very rare. In 22 years of practicing law, Clancy said, he's witnessed a judge rejecting a plea agreement only "three or four times." Another local defense attorney, Charles Haden, said he's seen it happen "five or six times" in 20 years.

Hampton Commonwealth's Attorney Linda Curtis said that of about 700 cases her office closed out in 2006, about 200 of them, or 27 percent, were resolved through plea deals. Only about 10 of those - less than half of one percent - were rejected by a judge.

About five of the rejections, Curtis said, were turned down because a judge found the sentence inappropriate. Another five or so were rejected for other reasons, such as the judge being unsatisfied with the defendant's answers to a routine series of questions.

One Hampton judge, for example, recently threw out a plea agreement when a woman accused of cocaine possession said "no" when the judge asked if she was satisfied with her public defender.

Gwynn said he couldn't remember the last time a Newport News Circuit Court judge rejected a plea agreement brought by his office.

While plea agreements aren't popular with the public, they serve the legal system in two ways, local lawyers say.

For cases in which both sides agree on a likely verdict and sentencing outcome - based on the evidence and state sentencing guidelines that consider such things as a defendant's past record - a plea agreement is simply a way to resolve cases without having to undertake a time-consuming trial.

In other cases, plea agreements allow prosecutors to salvage convictions in cases that aren't sure things - and allow defendants to cut their possible losses.

Even if a prosecutor believes someone is guilty, a host of factors can get in the way of proving that to a jury: The age of the case, the physical evidence (or lack thereof), the strength of the witnesses, whether key events and dates can be established, and how good the opposing lawyer is, among other things.

"To prove a case I have to be able to put a whole lot of things together," Curtis said. "Maybe I can put it together and maybe I can't ... It's not that we're lazy or in a hurry or just trying to get things over with. Sometimes a bird in the hand is worth two in the bush."

Sexual assault cases - especially those involving children - are among the most difficult to prove, Curtis said. "If sometimes we have to accept a lesser sentence than we would like to not risk putting a child on the stand and having the child freeze, those are decisions we have to make."

Even with a lesser conviction, she added, at least the system has a sort of hold over a defendant - such as requiring a defendant to register as a sex offender or having suspended time hanging over them.